End User License Agreement
Effective date: February 09, 2017
Effective date: February 09, 2017
This End User License Agreement (this “Agreement”) is made by and between Fortanix, Inc., a Delaware corporation (“Fortanix”), with its principal address at 3910 Freedom Circle Drive, Suite 104, Santa Clara, CA 95051, and the person or legal entity accepting this Agreement (“End User” or “Customer”). This Agreement is a legal agreement between Fortanix and End User.
END USER MAY ACCEPT THE TERMS OF THIS AGREEMENT BY CLICKING A BOX INDICATING ACCEPTANCE, BY EXECUTING AN ORDER FORM REFERENCING THIS AGREEMENT, OR BY USING THE SOFTWARE. IF END USER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, END USER MAY NOT USE THE SOFTWAREIF END USER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, END USER MAY NOT USE THE SOFTWARE. ANY INDIVIDUAL ACCEPTING THE TERMS OF THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY MUST HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. IF THE INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY, THE INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT. This Agreement is effective between Fortanix and End User as of the date End User accepts this Agreement (the “Effective Date”). Fortanix and End User are individually referred to as a “Party” and collectively as the “Parties.”
(a) “Software” means Fortanix key management software, in machine-readable object code format only, including any associated end user documentation, supplied by Fortanix to Customer under this Agreement.
The Software is licensed to End User and is not sold. End User has no ownership rights in the Software. Rather, End User is hereby granted a license to use the Software. The Software is copyrighted by Fortanix. End User hereby agrees to respect and not to remove or conceal from view any copyright or trademark notice appearing on the Software or any documentation, and to reproduce all copyright or trademark notices on any copy of the Software and documentation or any portion thereof and on all portions contained in or merged into other programs and documentation.
(a) Subject to the terms and conditions of this Agreement, including, but not limited to, the payment of the annual licensing fee referenced in this Section 3 below, Fortanix grants to End User a worldwide, non-exclusive, non-transferable limited license to use the Software unmodified for the sole purpose of End User’s internal use and to copy the Software provided that such copies are made in machine readable form for backup purposes only.
(b) End User shall pay Fortanix an annual licensing fee upon delivery of the Software. Thereafter, an annual licensing fee is due on each successive anniversary of the Effective Date, until this Agreement is terminated as provided in Section 5.
(c) The annual licensing fees due under this Agreement do not include any shipping, duties, bank fees, sales, use, excise or similar taxes. due. If Fortanix is required to pay any such amounts, End User shall reimburse Fortanix in full.
(a) If End User notifies Fortanix of a substantial program error respecting the Software, or Fortanix has reason to believe that error exists in the Software and so notifies End User, Fortanix shall at its expense verify and attempt to correct such error within thirty (30) days after the date of notification. If End User is not satisfied with the correction, then End User may terminate this Agreement, but without refund of any amount paid to Fortanix.
(b) If End User desires to continue the Software support as specified in this Section, End User shall pay to Fortanix the annual licensing fee referenced in Section 3.
(c) Fortanix may update the Software at its convenience. Such updates shall be made available for End User at no additional cost. End User may at its own discretion use the updated Software or continue using the old Software; provided, however, that if End User elects to continue using the old Software, Fortanix shall have no further liability to support the Software as specified in this Section or to indemnify End User as provided under Section 7.
(a) This Agreement is effective until terminated. End User may terminate this Agreement at any time by notifying Fortanix in writing, sixty (60) days in advance of requested termination date. No refund of already paid annual licensing fees will be provided. Upon termination, End User shall stop using the Software and destroy any accompanying written materials in its possession or control.
(b) This Agreement shall terminate with thirty (30) days’ prior written notice from Fortanix, if End User fails to comply with the terms and conditions of this Agreement. Upon such termination, End User shall stop using the Software and destroy any accompanying written materials in its possession or control.
(c) Fortanix shall provide End User with a one (1) month advance written notice of annual licensing fees due, prior to each anniversary date of the Effective Date. If annual licensing fees are not paid within one (1) month of the anniversary date of the Effective Date, Fortanix may terminate this Agreement without notice. Upon such termination, End User shall stop using the Software and destroy any accompanying written materials in its possession or control.
(a) Indemnity. Fortanix shall defend End User, its affiliates and their respective officers, directors, employees and agents from and against any and all third party demands, claims, and investigations arising out of or related to any allegation that the Software infringes any third party’s United States patent, copyright or trademark or misappropriates any trade secret (but only to the extent that such misappropriation is not a result of End User’s actions) and indemnify End User from all fines, damages and costs finally awarded against End User by a court of competent jurisdiction or a government agency, or agreed to in settlement, with regard to any such claim.
(b) Remedies. In the event that any or all of the Software subject to an infringement claim under Section 7(a), Fortanix shall, at its cost and at End User’s election: (a) modify the infringing Software so that it is non-infringing but otherwise meets the relevant requirements; (b) obtain for End User a license to continue using the same Software in the manner set forth in this Agreement; or (c) refund to End User any prepaid fees, prorated for the remaining portion of the then-current term.
(c) Procedure. End User shall notify Fortanix of any claim for which it seeks indemnification or defense under Section 7(a). If End User elects to have Fortanix indemnify defend any such claim, End User shall: (a) grant Fortanix sole control of such claim, (b) permit Fortanix, through counsel reasonably acceptable to End User, to defend the claim; (c) cooperate with Fortanix in such defense; and (d) have the right, (but not the obligation) to employ separate counsel (at End User’s expense) in order to monitor or participate in the defense of such claim. Fortanix shall not settle any claim that imposes upon End User any liability, damages, restriction or obligation without End User’s prior written consent, which consent will not be unreasonably withheld.
(d) Notwithstanding the foregoing, Fortanix will have no liability with respect to any infringement claims arising out of: (i) combination of any Software with any hardware, software, or services not provided by Fortanix, where the combination causes the infringement and not the Software standing alone; (ii) modification of the Software other than by Fortanix; or (iii) use of Software other than in accordance with this Agreement.
(a) Fortanix warrants that, for a period of ninety (90) days from the Effective Date, the Software will materially conform to all applicable specifications set forth in the documentation for the Software. If the Software fails to materially conform to its applicable specifications, Fortanix shall, at its option, repair or replace the affected Software, or refund the fees paid for the affected Software.
(b) Fortanix does not warrant that the Software will meet End User’s requirements, that the operation of the Software will be error-free or uninterrupted or that all Software errors will be corrected. EXCEPT FOR THAT LIMITED WARRANTY, THE SOFTWARE IS PROVIDED BY FORTANIX “AS IS” WITHOUT WARRANTY OF ANY KIND. FORTANIX DOES NOT WARRANT THAT THE SOFTWARE WILL MEET END USER’S REQUIREMENTS, OR THAT THE SOFTWARE’S OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS CAN OR WILL BE FIXED. FORTANIX DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE.